Greg Abbott’s (and Ron DeSantis') liberal enablers

Greg Abbott (Photo by Gage Skidmore)

A giant vehicle with nearly unchecked power to destroy families was built largely by the Left.  Too bad it never occurred to a lot of my fellow liberals that, someday, someone like Texas Gov. Greg Abbott [or Florida Gov. Ron DeSantis] would get the keys. 

UPDATE, JUNE 12: NBC News reports that another right-wing governor, Florida’s Ron DeSantis also wants to exploit power handed to him both by liberal politicians and by liberal media, particularly the Miami Herald, which has campaigned for years to make the state’s family policing agency ever more oppressive and more powerful. 

My fellow liberals are very upset – as they should be. 

Everywhere you turn, it seems, the liberal child welfare establishment is churning out statements “blasting” Texas Gov. Greg Abbott for unleashing the state’s family policing agency (a more accurate term than “child welfare agency”) against transgender children and their families. 

The Children’s Defense Fund is doing what it does best, issuing a statement. Chapin Hall at the University of Chicago did the same and included endnotes. The American Civil Liberties Union is doing what it does best – suing.  The group that calls itself Children’s Rights is doing what it does best – exploiting the whole situation to collect email addresses for endless fundraising appeals. 

And it’s not just the usual suspects. The federal government’s Administration for Children and Families, which can take six months just to clear its throat, already has an entire “information memorandum” out.  Even President Biden weighed in, condemning Texas for “weaponizing child protective services against loving families.”  (Meanwhile, some of the same news organizations who are outraged by Abbott bought into the whole racist COVID “pandemic of child abuse” myth.) 

President Biden is right.  CDF is right. The ACLU is right. Chapin Hall is right. Even Children’s Rights is right.  Greg Abbott’s cynical, callous, breathtakingly cruel attack targeting transgender children deserves all the condemnation it is getting – and more.   (And while Abbott has systematized such attacks, they are not limited to Texas.  This case is from Michigan.) 

It’s just too bad all these groups didn’t think of consequences like this when, either by action or omission, they built the very system that Abbott is abusing.  Some of them continue to prop up that system.  It’s too bad all these groups and individuals didn’t notice that the family policing system has been “weaponizing child protective services against loving families” – in particular nonwhite families -- from its inception.  

As Prof. Shanta Trivedi of the University of Baltimore School of Law wrote in The Washington Post on Feb. 28: 

Though many are rightly outraged [by what Abbott has done], those familiar with the child welfare system are not surprised.  Vague definitions of abuse and neglect open the door to state-approved discrimination. These laws have historically been used to control Black and Native families, and these parents live in constant fear that their children could be removed. … Child welfare laws invite discrimination and have been used to regulate marginalized communities. 

How bad is this system that runs roughshod over families and was largely built by my fellow liberals? 

NCCPR’s Due Process Agenda, called Civil Liberties Without Exception, begins with this hypothetical: 

Suppose, when he was attorney general, William Barr had proposed anti-terrorism legislation with the following provisions: 

Special anti-terrorism police could search any home without a warrant – and stripsearch any occupant — based solely on an anonymous telephone tip.  Any occupant of the home could be detained for 24 hours to two weeks without so much as a hearing – and they’ll probably be detained far longer because, in the special anti-terrorism court set up by this legislation, all the judges are afraid to look soft on “terrorists.” 

At that first hearing the detainees may – or may not – get a lawyer just before the hearing begins, and they almost never get effective counsel. 

At almost every stage, the standard of proof is not “beyond a reasonable doubt” or even “clear and convincing” but merely “preponderance of the evidence,” the lowest standard in American jurisprudence, the same one used to determine which insurance company pays for a fender-bender. 

And in most states, all the hearings and all the records are secret. 

Had Barr proposed such legislation, it’s reasonable to expect that civil libertarians would have responded with fury. 

Yet this hypothetical anti-terrorism law already is the law governing the system we call “child welfare.”  And sadly, many who in other circumstances are quick to defend civil liberties either stand silent or support it. 

Now Greg Abbott has driven home the consequences of liberal silence and liberal support for a child welfare surveillance state that tramples on civil liberties. 

The Right bears responsibility, too 

The Right should not be let off the hook here.  This is an issue that creates unusual divisions and unusual alliances.  It was, after all, Newt Gingrich who called for putting poor people’s children into orphanages.  It was the Right that watered down the Family First Prevention Services Act to eliminate the kinds of help families need most – concrete help to ameliorate the worst effects of poverty.  (They’re still at it, blocking President Biden’s anti-poverty agenda – which is the ultimate anti-child abuse agenda.) And much of the backlash against racial justice in child welfare comes from right-wing ideologues, including one who proudly analogizes her work to that of Charles Murray. 

There also are groups, on the Left and the Right who do understand this and have worked together to curb the family policing system. 

But when you look at the lawmakers who lead efforts to make state and local family policing systems even bigger and more powerful, they tend to come from the Left.  At the federal level, while right-wing Republican Tom DeLay was a prime mover behind the odious, racist Adoption and Safe Families Act of 1997, a law that passed almost unanimously, it had an even more powerful backer: Hillary Clinton. She was still bragging about it when she ran for president in 2016. 

So now, thanks to ASFA, if Greg Abbott’s family police take away transgender children and stall the process for 15 months, federal law actually requires the family police to seek termination of those children’s rights to their parents (a more accurate term than termination of parental rights). Because under ASFA it doesn’t matter why a child was taken in the first place.  

Enablers in Texas 

It is much the same in Texas. 

For decades Texas media fawned over Scott McCown, first when he was a judge in Austin and then when he ran a liberal think tank, the Center for Public Policy Priorities.  For at least a decade McCown was the Godsource for Texas media – no story about Texas child welfare was complete without an obligatory Scott McCown quote.  His skill at portraying himself as the lone Voice of the Left fighting for children against the right-wing Texas political establishment enhanced his appeal. 

McCown was the personification of everything wrong with the liberal child welfare establishment.  He said there was no problem with wrongful removal, that families had all the due process they needed and he was explicit in demanding that Texas take away more children.  You can read all about him in NCCPR’s 2005 report on Texas child welfare. 

McCown’s legacy lives on.  Even as they write story after story about the hellscape that is Texas foster care, with rare exceptions, Texas media won’t even consider that the problem involves taking away too many children and the widespread confusion of poverty with neglect. 

Last year, the Texas legislature considered a bill to modestly narrow the grounds for coercive intervention into families and make it harder to confuse poverty with neglect. In a "news story" dripping with sarcasm, Dallas Morning News Austin Bureau Chief Robert T. Garrett almost brags about refusing to report himself on issues of wrongful removal and due process. He writes: 

GOP leaders want to put a tighter leash on [child protective services]; make it harder to remove children from their birth families … Some staunchly conservative Republican lawmakers have helped make individual families’ fights with CPS, covered by right-leaning news outlets, into causes célèbres.

In fact, in a legislature where Democrats are greatly outnumbered, they made up more than one-third of the bill’s sponsors and cosponsors.  The bill passed almost unanimously.  One of those apparently not too keen on it: Greg Abbott. He let it become law without his signature. 

So which is it, Dallas Morning News?  Is the vast right-wing conspiracy in Texas out to crush innocent families by misusing its vast power?  Or is the vast right-wing conspiracy in Texas tying the hands of noble caseworkers and turning a blind eye to child abuse by cutting back on that same power? 

It’s not just the Dallas Morning News.  On March 4, the Texas Tribune ran a very good story about parents of transgender children rushing to lawyer-up – as they should.  Because, as one expert said: “Once you're in the clutch of the child welfare system, you're very vulnerable.”   

But back when she was editor of the Tribune, and before that when she covered child welfare for that respected online news outlet, Emily Ramshaw (now CEO of The 19^th) wrote stories much like Garrett’s – and she, too, systematically shut out all dissent. 

Even now there’s a subtle bias.  Although the story about the rush to hire lawyers briefly mentions that some are working pro bono, it says no more about all the families who can’t afford to pay and aren't likely to find such a lawyer – which is most families “in the clutch of the child welfare system.”

UPDATE, MARCH 9: One Texas-based reporter does get it. In this excellent story for Slate, Roxanna Asgarian writes:

The child welfare system—decried as “family policing” by critics—is a particularly potent tool for transphobic politicians because it was set up to surveil families that fall outside of the white, middle class norm.

Not much of a learning curve 

Maybe all this would be excusable if these various organizations really learned anything.  We’ve seen that most Texas media have not.  At the national level, the ACLU has – they’re doing excellent work countering the use of predictive analytics (computerized racial profiling) in child welfare.  

But the Children’s Defense Fund, which has been fine with ASFA and opposed real child welfare finance reform is as regressive as ever.  Have you heard what they said about legislation to curb ASFA?  Neither have I. I haven't seen a word about it from Chapin Hall either.

And the award for chutzpah goes to Children’s Rights,  They have radically changed their rhetoric, especially their Twitter feed, but not their awful litigation – which repeatedly has made family policing systems bigger and more powerful.  CR even cites its own Texas McLawsuit – which does nothing to curb the power of the family policing system as somehow putting them “in a unique position” to recognize Greg Abbott’s hypocrisy!  (CR has an even worse settlement in Michigan, but they have leveraged none of their influence to do anything about what happened in the case cited above.) 

So here’s a test for any individual or organization who claims to oppose “weaponizing child protective services against loving families.” Are you ready to acknowledge your own complicity in building the weapon?  Are you ready to sue to stop wrongful removal? Are you ready to seek to reopen old settlements that fail to address the issue?  Are you ready to demand repeal of ASFA, or at least support significant reform?  What about it ACLU?  Where do you stand CDF?  Are you willing to do more than exploit the issue to raise money, Children’s Rights? 

And what about you, Mr. President?  Are you ready to support repealing a law that doesn’t just weaponize the family police – it gives them the equivalent of a nuclear arsenal? 

A teachable moment? 

Perhaps this is another teachable moment in child welfare.  Just as what Donald Trump did to children at the Mexican border brought home to millions of Americans the trauma of needless family separation, perhaps Gregg Abbott’s behavior will help my fellow liberals understand the need for civil liberties – without exception. 

It all boils down to this: A whole lot of people and organizations whose politics are a whole lot like mine decided that everything they professed to believe in about civil liberties did not apply as soon as someone whispered the words “child abuse” in their ears.  So they built a monstrous vehicle – like a giant tank - with the power to crush almost any family. 

But they never expected that, someday, someone like Greg Abbott would get the keys.

Attn: ACLU: Child Protective Services does the “unimaginable” every day. When are you going to do something about it?

To it's credit, the ACLU is fighting for the rights of immigrant children to stay with their families.  But for decades, at the national level, when it comes to protecting the civil liberties of American children threatened with needless foster care, the ACLU has been AWOL. 

 

Sure, we're still tearing apart families at the border,
says Acting Homeland Security Secretary
Kevin McAleenan. But don't worry, he says:
“This is in the interest of the child.”

To its credit, the American Civil Liberties Union has been a leader in efforts to stop the Trump Administration from tearing apart families at the Mexican border.  Last week, the ACLU revealed that at least 900 children have been torn from their parents in spite of a court-order banning the practice.

How are they doing it?  In the name of “child safety” of course.  Or as acting Homeland Security Secretary Kevin McAleenan put it: “This is in the interest of the child.”

The separations are allowed when remaining with a parent truly would endanger the child.  So here’s what Trump is doing, according to ACLU attorney Lee Gelernt, in an interview with NPR:

They’re separating [families] for the most minor crimes possible, traffic offenses, in one case a nonviolent theft for $5, disorderly conduct – just shocking, … [It’s] family separation by another name under the guise of supposedly protecting children from dangerous parents …

Can you imagine how many Americans would lose their children if a traffic offense or a disorderly conduct or a misdemeanor theft offense was a basis for taking away your child? 

Actually, yes. I can imagine it.  In fact, no imagination is required.  Because tens of thousands of children are torn from everyone they know and love for far less every year by U.S. child protective services agencies.  And all the while, the national ACLU has stood silent.

Some state affiliates get what the national office does not

There are state affiliates of the ACLU that get this, notably Illinois, South Dakota, and Pennsylvania (where the legal director is a member of NCCPR’s volunteer Board of Directors).

But for decades, at the national level, when it comes to protecting the civil liberties of children threatened with needless foster care, the ACLU has been AWOL.  

NCCPR’s founder, the late Betty Vorenberg, resigned from the National Board of the ACLU because of its longstanding failure to lift a finger to deal with the massive infringements of civil liberties perpetrated routinely by child protective services agencies – using the same rationale now being used by the Trump Administration at the border. 

Full details on the ACLU’s failure are in this earlier post.  But for the benefit of Mr. Gelernt and anyone else at the ACLU who genuinely doesn’t know how CPS agencies work, here are a few examples:

● When panhandling is a crime, it is no worse an offense than a traffic ticket or minor theft or disorderly conduct.  This man had his children taken away because of it. 

● Being homeless or living in substandard housing is not a crime.  But these children in Texas were thrown into foster care because of it.  So was this child in Philadelphia.  And this child in New York.  (And did you know, ACLU, that multiple studies have found that 30 percent of America’s foster children could be home right now if their families had decent housing?)

● Not realizing that your small child had wandered out of the house while you took a bath is not a crime. But if you’re poor it’s reason enough to throw your child into foster care.

As one lawyer told The New York Times: “In another community, your kid’s found outside looking for you because you’re in the bathtub, it’s ‘Oh, my God’” — a story to tell later, he said. “In a poor community, it’s called endangering the welfare of your child.”  The lawyer does not work for the ACLU.

● In some places smoking marijuana is a crime.  But no more serious than the ones Mr. Gelernt described.  Yet that, too is reason enough to consign a child to the chaos of foster care. Even drinking marijuana tea to ease the pain of labor can lead to a child being confiscated at birth.

You may not be aware of all this, ACLU. But poor people know all about it. As a New York Times story from just last week makes clear, it’s a fear they live with every day.

I’m glad the ACLU is fighting for the rights of children taken from their parents by the Border Patrol.  But the tragedy is every bit as real when it is inflicted by child protective services. (The fact that CPS agencies usually mean well is no comfort to the children – they shed the same sorts of tears as the children taken at the border, for the same reasons).  

So, ACLU, When are you going to do something about it?

For more on the extent to which American child welfare systems trample on civil liberties, see NCCPR's Due Process Agenda, "Civil Liberties Without Exception."

Child welfare and civil liberties: When we betray our principles, we betray our children

First of two parts

Late last year, The New York Times published a story about the frightening amount of power, and the frightening lack of accountability, among some of America’s county sheriffs. It included this example:

This year, the sheriff in Worth County, Ga., ordered his deputies to enter the local high school in search of drugs. They lined up 850 students with legs spread and hands against the hallway walls. Deputies inserted fingers into girls’ bras, and touched their underwear and genital areas while searching in their waistbands or reaching up their dresses, according to the Southern Center [for Human Rights], which sued the sheriff.

The deputies had no warrant or other authority to conduct the search, the suit charged. No drugs were found. … The Georgia sheriff was recently indicted in connection with the mass search and has pleaded not guilty. The lawsuit resulted in a $3 million settlement.

Wow. A $3 million settlement and criminal charges – charges that included a misdemeanor count of “sexual battery.”  Just goes to show what happens when advocates of civil liberties mobilize.  Even authorities with all that power can be held accountable.

A random sample of the nearly 200 comments on the story found unanimous condemnation of the abuses outlined in the story (of which the example above was only one) – not to mention a rush to blame it on political conservatives.

Now, consider a far more common infringement on civil liberties, as described by The New Yorker:

You will hear a knock on the door, often late at night. You don’t have to open it, but if you don’t the caseworker outside may come back with the police. The caseworker will tell you you’re being investigated for abusing or neglecting your children. She will tell you to wake them up and tell them to take clothes off so she can check their bodies for bruises and marks.

Even though this story described the rule, not the exception, there were no cries of outrage from civil libertarians. And the letters to The New Yorker in response to the story defended the people inflicting this infringement on civil liberties on defenseless children.

Because, of course, the people doing this to children were not sheriff’s deputies, they were – and are

– child protective services workers.  The differing responses illustrate, once again, that the quickest way to get many liberals to renounce everything they claim to believe about civil liberties is to whisper in their ears those two magic words “child abuse.” (The Left has no monopoly on hypocrisy – it was that great “family values conservative” Newt Gingrich who proposed confiscating the children of the poor and throwing them into orphanages.)

Just say the magic words

But for many on the left, call it a child abuse investigation and suddenly, behavior which in any other context would be sexual abuse is deemed acceptable. Behavior like this concerning a six-year-old:

The caseworker says that she needs to take pictures of Jackie’s body. Her mother, visibly shaken, again expresses discomfort, but the caseworker tells her “Oh, don’t worry. It’s more stressful for the parent than it is the child.”

And so Jackie’s mother helps Jackie to take off her clothes. The caseworker asks Jackie to lie down on the bed and spread her legs. Despite having no training in this specialized work, she then “[takes] pictures of Jackie’s vagina and buttocks in a closed position, and then instruct[s] [her mother] to spread Jackie’s labia and buttocks, so that she [can] take pictures of the genital and anal areas.” For months afterwards, both Jackie and her mother suffer from nightmares, anxiety, and depression.

Finding no basis to substantiate its concern that the child may have been abused, the state closes its case file.

Or consider the case in which these questions ultimately reached the U.S. Supreme Court (which ducked the issue) – a case in which NCCPR’s Vice President served as pro-bono counsel for the family:

Nine-year-old Sharon [not her real name] was removed from her classroom by school officials and escorted to another room in the school where she was met by two men, one of them a uniformed deputy sheriff carrying a gun.  They had no permission from any court; no neutral arbiter had decided first if what these men were about to do really was necessary.

For two hours Sharon was interrogated.  She was badgered relentlessly when she did not give the men the answers they wanted to hear.  She was too scared to leave the room, too scared even to ask for a glass of water.   She realized that the only way out was to lie.

Needlessly to say, Sharon was not a criminal.  On the contrary, the two men thought that maybe Sharon had been abused, and this seemed to them the most convenient way to find out.

But the botched interrogation led only to lies and confusion.  And it set off a cascade of error that caused even more trauma to Sharon including a stripsearch, a highly traumatic medical examination and several weeks consigned to America’s chaotic system of foster care.

Should “speculation and hearsay” really be enough?

In their own brief to the Supreme Court authorities in Oregon, where the case arose, actually said they should have the right to do this to a child based on – their words – “speculation and hearsay.”

Not everyone on the Left turned a blind eye. On the contrary, the case was notable for the fact that groups on the left, such as the Southern Poverty Law Center, the National Center for Youth Law, the Juvenile Law Center and many groups that represent children in child welfare cases as well as groups on the right such as the Family Research Council and the Eagle Forum filed “friend of the court” briefs supporting the family.

But there were some notable absences. The American Civil Liberties Union remained silent. (That’s not unusual. At the national level, when it comes to the notion of applying civil liberties to child welfare, the ACLU tends to be AWOL.)  The group that so arrogantly calls itself “Children’s Rights” does not seem to think those rights should include the ones covered by the Fourth Amendment. And the National Association of Social Workers actually submitted a brief supporting the nearly unlimited power to subject children to this kind of trauma.  (The Clinical Social Work Association, in contrast, stood up for the children.)

Meanwhile, in still another appalling case, in which girls were stripsearched in front of a male police officer, a lawsuit has been brought for the family by a conservative group, the Home School Legal Defense Association.

The intrusion doesn’t have to rise to the level of a stripsearch to be traumatic.  The questioning alone can traumatize a child, particularly a young child.  As three of the leading child welfare scholars of the 20th century, Anna Freud, Joseph Goldstein and Albert J. Solnit wrote, in calling for far higher standards before ever intervening in families:

Children react even to temporary infringement of parental autonomy with anxiety, diminishing trust, loosening of emotional ties, or an increasing tendency to be out of control.

The Baltimore Sun recognized this in an editorial cautioning against toughening “mandatory reporting” laws – even at a time when the pressure to toughen those laws was greatest, right after the crimes of former Penn State coach – and foster parent - Jerry Sandusky were exposed. As the Sun wrote:

Moreover, abuse investigations are inherently traumatic for children. They often involvehours of intensive questioning about sensitive issues of sexuality, shame and guilt as well as intrusive physical examinations that frighten and humiliate suspected victims. The stress brought on by such procedures can leave lasting emotional and psychological scars even on children who turn out not to have suffered abuse.

The new normal

That kind of intrusion is the new normal for Black families. Arecent study found that 53 percent of African American children will endure a child abuse investigation before they turn 18. 

Indeed, the very fact that the child welfare system targets almost exclusively poor families and disproportionately families of color helps explain the lack of outrage, especially in the media and among politicians. One can see that in Massachusetts when all of a sudden media and politicians did get outraged – when it happened to people of their race and their class: middle-class foster parents.

But that doesn’t explain all of it.  Stop-and-frisk targets the poor and it targets people of color. Liberals can be relied upon to be outraged by it. Yet many of the same liberals who will rise up in righteous wrath against infringements of the civil liberties of adults by law enforcement stand silent or, worse, defend the routine violations of children’s civil liberties in the name of “child protection.”

Similarly, some liberals who would never think it’s o.k. to throw a passenger off a plane just for speaking Arabic will gladly seek to instill paranoia in our children – and even promote the extremely dangerous practice of defensive driving – again, in the name of “child protection.”

After all, they will say, a child abuse investigation is different – it’s done to protect the child.  But infringements against civil liberties almost always are justified by invoking noble goals – that’s why defending civil liberties often is unpopular.  That sheriff in Georgia could argue that he, too, was simply trying to protect children – from the scourge of drug abuse.

All this explains why the due process protections we take for granted in most areas of law are largely absent in child welfare.  But whenever we on the Left betray our principles, we also betray our children.

Read Part Two here

Foster care in South Dakota: The state goes after another child welfare whistleblower

            It’s hard to say in which state it is most dangerous to take on child protective services – but a good case can be made for South Dakota.

            For the second time in less than a year, South Dakota authorities allegedly retaliated against a whistleblower who sought to change the state’s horrific child welfare system, a system whose failings were exposed in a Peabody award-winning series by NPR last fall.

            The first instance concerns Robert Doody, executive director of the South Dakota branch of the American Civil Liberties Union.  Shortly after he announced that the South Dakota ACLU was looking into the NPR stories and gathering cases for a possible class-action lawsuit, his own child was taken from him.  As of May 1, that child still was in foster care.

            But now, it turns out, even a prosecutor may not be immune from the long, vengeful arm of South Dakota authorities.

            Brandon Taliaferro used to be in charge of prosecuting real child abuse in Brown County, which includes the City of Aberdeen.  But according to a report from the Lakota People’s Law Project (LPLP), that didn’t blind Taliaferro to the abuses of the South Dakota Department of Social Services.

           On his own, Taliaferro had drawn the same conclusions as NPR: South Dakota DSS repeatedly tore apart Native American families needlessly, and South Dakota repeatedly violated a federal law, the Indian Child Welfare Act (ICWA). For that he lost his job.  According to the LPLP report: 

Mr. Taliaferro was fired after a face-to-face meeting with D.S.S. official Virginia Weisler and D.S.S. Chief Counsel Daniel Todd. In that meeting D.S.S. Officer Weisler and D.S.S. Chief Counsel Todd accused Mr. Taliaferro of “not being a team player” and of “being disloyal to the D.S.S.”

            Taliaferro was fired by Brown County state attorney Kim Dorsett.  No one would accuse her of being disloyal to DSS – particularly since Dorsett had a $75,000 contract to represent DSS – a lot more than she was being paid to be Brown County state attorney at the same time.

            According to the LPLP report:

On December 19, 2011, The Aberdeen News reported that Mr. Taliaferro “said that it is financially beneficial for the department to remove American Indian children from their homes and place them in [white] foster homes.” Mr. Taliaferro said that, over the years in which he served as the Assistant State Attorney in Brown County in charge of prosecuting abuse & neglect cases, he and the D.S.S. were “often at odds.”

In official papers filed with the State Department of Labor in his appeal of his firing, Mr. Taliaferro charged that “following the orders of State Attorney Dorsett would have required [me] to violate the law, and ethical rules that govern attorney conduct.” Referring to the unlawful South Dakota state policy of systematically violating the Indian Child Welfare Act, Mr. Taliaferro asserted that he refused to participate in “a cover-up of misconduct” by the D.S.S.

COVERING UP ABUSE IN FOSTER CARE?

            But state officials weren’t through with Taliaferro. 

This part of the story begins with the placement of four Native American girls, ages 7,9,14 and 16, in a white foster home in Brown County.  They were placed over the objections of the children’s adult sister, who offered to take the girls in.  Federal law encourages states to give preference to relatives whenever a child must be placed in foster care, and the Indian Child Welfare Act requires it when the children are Native American.  The whole thrust of the NPR stories, of course, was South Dakota’s contempt for ICWA and its horrendous treatment of Native American children.

            The older girls complained that they were being sexually abused by the foster father, and the foster mother threatened to punish them if they told authorities.  Taliaferro investigated and concluded that the allegations were true.  He charged the foster father with 23 felony counts of aggravated rape of a child and aggravated incest.  The foster mother was charged with 11 felony counts of aiding and abetting the foster father’s crimes.

            Taliaferro was supported by Shirley Schwab, the director of the Court-Appointed Special Advocate (CASA) program in the county.  That, in itself, is extraordinary, given that CASA usually shows a profound bias in favor of foster parents and against birth parents.

            According to LPLP, these charges came after repeated reports were made to the South Dakota Department of Social Services alleging abuse by the foster parents.  DSS refused to investigate.

            But DSS and the state attorney general were a lot more aggressive about going after Taliaferro and Schwab. 

            The attorney general and the state Department of Criminal Investigation have charged Taliaferro and Schwab with “unauthorized disclosure of child abuse information” and “witness tampering” According to the LPLP report, Taliaferro and Schwab say these agencies are “actively coordinating with DSS officials” to use these “fabricated allegations” to discredit the evidence against the foster parents.  LPLP notes that the charges were brought  “immediately after the embarrassing [NPR] expose” of South Dakota DSS.

           The foster father ultimately pled guilty to one count of rape of a child under ten years old.  He will be sentenced to 15 years in prison, with parole possible after five.  According to LPLP, prosecutors originally planned to dismiss all of the charges against the foster father, except for one misdemeanor charge of spanking one child.  Only after the birth family expressed its outrage at the secret deal were the charges upgraded.

            LPLP reports that its investigation

revealed a common pattern: South Dakota state prosecutions tend to dramatically downplay criminal abuse cases brought against white foster care parents when Lakota Indian children are the victims. On the other hand, our investigation shows that Lakota parents are systematically treated more severely by D.S.S. than are white parents for virtually identical conduct. Indeed, over the last ten years, Lakota children in South Dakota have been systematically removed from their Lakota parents under factual circumstances under which white children would never have been taken away from their white parents. This is exactly the conduct of which former Assistant State Attorney Taliaferro accused D.S.S. officials,

           

            A hearing on the charges against Taliaferro and Schwab is scheduled for Wednesday.

UPDATE: Foster care in South Dakota: Members of Congress investigate NPR’s revelations

            Rep Ed Markey (D-Mass.) and Rep. Dan Boren (D-Okla.), the ranking minority members of the House of Representatives committee and subcommittee with jurisdiction over Indian affairs, have launched an investigation of the revelations in NPR’s brilliant three-part series about what child protective services in the State of South Dakota is doing to Native American families.

            That’s another good step in the right direction, coming as it does after the announcement from the South Dakota ACLU.

Foster care in South Dakota: NPR stories get the ACLU’s attention

            This will give you some idea of the power of NPR’s three-part series on the destruction of Native American families by child protective services in South Dakota: The stories were a 2 x 4 so big they even got the attention of the state chapter of the American Civil Liberties Union.

            That has the potential to jump-start efforts to stop the practices exposed by NPR.  Up to now, the small and underfunded Lakota People’s Law Project has stood virtually alone in fighting for the rights of South Dakota’s Native Americans under the Indian Child Welfare Act.  (Their director has posted a blog to answer the many people who have asked how they can help as individuals.)

            One would think ACLU involvement would be a no-brainier: A state tears apart families at one of the highest rates in the nation, repeatedly confuses family poverty with neglect and tramples on a federal law designed to protect Native Americans.

            But as I’ve noted often before on this Blog, too many of my fellow liberals forget everything they claim to believe about civil liberties as soon as someone whispers the words “child abuse” in their ears. That’s a major reason why the traditional due process protections Americans take for granted in other fields of law are almost non-existent in child welfare.  (For details see our Due Process Agenda).

            There is no clearer example of this myopia than the behavior of the ACLU, nationally and in most states.  Typically, when it comes to the rights of children to live with their own families, the ACLU is AWOL.  NCCPR’s founder, Elizabeth Vorenberg, resigned from the ACLU’s National Board over its failure to defend the civil liberties of families facing the unchecked power of child protective services.

            The child welfare field is filled with issues that would seem to be obvious choices for ACLU litigation: Secret trials, lack of adequate (or sometimes any) defense counsel, searches and seizures without warrants, and on and on. 

Refusing to defend children's Fourth Amendment rights

            But consider what happened this year when the first major child welfare case in 21 years, Camreta v. Greene, reached the U.S. Supreme Court.  As we explain on our special website about the case:

The child was only nine years old when she was called out of her classroom and forced to endure a two-hour interrogation by a male caseworker for the Oregon Department of Human Services because DHS had received a false allegation of sexual abuse.  Sitting silently in the room during the entire interrogation was another man - an armed deputy sheriff. 

            The child repeatedly denied any abuse, only to be browbeaten by the caseworker, who kept insisting she was giving the wrong answers while questioning the little girl about the most intimate details of her life. …  The experience so traumatized the child that she became physically ill.

           The child sued and the Ninth U.S. Circuit Court of Appeals agreed that her Fourth Amendment right to be free from unreasonable search and seizure had been violated.

            NCCPR’s Vice President, Carolyn Kubitschek represented the child. The Family Defense Center co-ordinated an extraordinary effort leading to the filing of 18 amicus briefs by 70 individuals and organizations in support of this child’s Fourth Amendment rights.

           Several of the groups, including the Legal Aid Society Juvenile Rights Practice,  Lawyers for Children, and the Children’s Law Clinic at Penn State University specialize in representing children in cases involving alleged child maltreatment.  All of them understood how destructive it is to a child to deny that child her rights under the Fourth Amendment.

            But not the ACLU.  The ACLU remained silent.

            It is much the same at the state level.  Over and over, families have told me about how they sought help from the ACLU in their state and were turned away.  Sometimes it’s even worse.  

In Indiana, the state chapter of the ACLU actually sued to block modest reductions in pay for foster parents.  Even if one believes that foster parents somehow should be exempt from the sacrifices being made by everyone else in a recession, (which can only lead to more cuts elsewhere, such as help for birth parents) how exactly is that a civil liberties issue? 

In Michigan, the ACLU did go to bat for the upper-middle-class white child taken from his parents after his father accidentally bought him Mike’s Hard Lemonade at a baseball game, and the redress they are seeking will help all families.  But they did nothing to help Maryanne Godboldo’s child, who is poor and Black, and was taken from her mother when she exercised her legal right to stop giving the child psychiatric medication with severe side-effects.   Godboldo and her grassroots allies had to win that case without the ACLU’s help.

Certainly, there are exceptions.  The ACLU of Pennsylvania repeatedly has championed the rights of children against the power of CPS agencies (their legal director is a member of NCCPR’s Board of Director).  And one of the class-action lawsuits that has helped dramatically improve child welfare in Illinois was brought by the Illinois ACLU.

Now, the South Dakota ACLU is stepping in to help champion the right of Native American children to their own families.  But the Indian Child Welfare Act is a federal law, and, as NPR notes, it is being violated in 32 states.  Where is the National ACLU?  Doing what it usually does: Exercising its very own right to remain silent.

Pride of the Yankees

Part of the explanation lies in an unfortunate decision made by the ACLU when it set up a Children’s Rights Project in 1979.  They hired as its director the person who was already running a similar project for the New York Civil Liberties Union – Marcia Lowry.

One of Marcia’s earliest suits in New York was an attempt to bolster the rights of foster parents to prevent children from being transferred to other homes – including the homes they came from in the first place.   Real champions of civil liberties, like Louise Gans, who then was with Community Action for Legal Services, were furious.  As Nina Bernstein writes in her brilliant book, The Lost Children of Wilder: The Epic Struggle to Change Foster Care:

For Gans and many of her colleagues, the true road to children’s rights lay in defending poor parents against the state’s abuses of power.  Gans believed that poor families were routinely misled and mistreated by foster care agencies – their children unnecessarily removed, their visits curtailed, and reunification wrongfully discouraged.  More passionately that most, she felt that legal reform efforts should concentrate on changing the state’s s treatment of biological parents.  Yet here, instead was CLU litigation that risked establishing some kind of constitutional right for foster parents – another weapon agencies could use against poor families …

Gans and other Legal Services people felt embattled.  Their clients had terrible problems, and their staff and resources were always inadequate to help. By their standards the CLU was rich.   That made it all the more galling that with a million lawsuits to choose from, Lowry should bring one that in their view threatened to make things worse instead of better.

Or as Danny Greenberg, then Managing Attorney for MFY Legal Services put it in a confrontation with Ira Glasser, then executive director of the NYCLU (and later executive director of the ACLU):

My God, Ira.  Think of the class issues in this.  You think of yourself as a Brooklyn Dodger fan, a supporter of the underdog.  Only a Yankee fan could bring a lawsuit like this.  The Yankees would love this lawsuit.

Today, of course, Marcia Lowry still is the pride of the Yankees.

She actually left the ACLU to create the group that so arrogantly calls itself “Children’s Rights” because even Ira Glasser’s liberalism was too much for her.  She told the Chronicle of Philanthropy that too much of what the ACLU did was tied to a “liberal agenda.”  Leaving the ACLU also may have made her more appealing to Carl Icahn, the corporate raider who once chaired her Board of Directors.

So no one should be surprised at CR’s response to NPR’s revelations about what’s being done to Native American families in South Dakota:

Silence.